Dominique Dunstan v Bureau of Meteorology

[2019] FWC 5931

[2019] FWC 5931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Dominique Dunstan
v
Bureau of Meteorology
(U2019/8205)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 27 AUGUST 2019

Application for an unfair dismissal remedy

[1] On 25 July 2019, Ms Dominique Dunstan made an application by telephone for a remedy for unfair dismissal under to section 394 of the Fair Work Act 2009 (the FW Act).

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence on 26 July 2019 to Ms Dunstan.

[3] Ms Dunstan was allowed 14 days from the date of making the application to complete a Form F2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Ms Dunstan was advised that failure to return a completed application and payment/waiver form would result in her application being dismissed.

[4] On 7 August 2019, the Commission received an email from Ms Dunstan enquiring about costs.

[5] On 12 August 2019, the Commission sent Ms Dunstan an email providing her with information about costs and also advised that her application and payment were still outstanding. Ms Dunstan was advised that if she no longer wished to pursue her application, she should file a Notice of Discontinuance. She was also provided with a copy of the form F80 – Waiver of Application Fee.

[6] On 15 August 2019, the Commission attempted to contact Ms Dunstan by telephone as no completed application had been filed, however was unsuccessful. The Commission sent Ms Dunstan an email and advised that her application and payment were still outstanding. Ms Dunstan was advised that if she no longer wished to pursue her application, she should file a Notice of Discontinuance. The email also attached a form F80 - Waiver of Application Fee.

[7] On 16 August 2019, Ms Dunstan contacted the Commission by telephone and advised she may complete the application.

[8] On 21 August 2019, the Commission attempted to contact Ms Dunstan by telephone as no completed application had been filed, however was unsuccessful. The Commission sent Ms Dunstan an email and advised that her application and payment were still outstanding. Ms Dunstan was advised that if she no longer wished to pursue her application, she should file a Notice of Discontinuance and that in the absence of any advice from her the application may be dismissed. The email also attached a form F80 - Waiver of Application Fee.

[9] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

“9 Telephone applications

(1) This rule applies to a person wanting to:

....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.”

[10] Section 395 of the FW Act, which deals with application fees, provides:

“395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[11] Having regard to the above, Ms Dunstan has failed to file a completed application and did not pay the required fee or fill in the form F80 – Waiver of Application fee, despite being provided with a copy of the form F80 on four separate occasions.

[12] Section 587(1) of the FW Act provides as follows:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[13] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the FW Act and is therefore, not made in accordance with the FW Act. For this reason, the application is dismissed under section 587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT

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